"This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.
Nor should we have a debate about, for instance, how long the president's term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor."
So the author is advocating for an arbitrary system in which we decide in ad-hoc ways which parts of the Constitution we want to follow. Unfortunately, this already seems to be happening, as our government sees fit to disregard various provisions of the Bill of Rights, e.g., warrantless wiretapping, or the President's assertion that he can dispatch drones to kill even US citizens without due process.[1] It seems that the government proves to us every day that it needs the Constitution to keep it on a short leash.
Since the Constitution contains a process by which it can be amended, why don't we just follow that? Over the years, amendments have given us some very fundamental changes: the abolition of slavery, the right of women to vote, presidential term limits, etc. Granted, it's a slow process that the author may be impatient with, but it's probably preferable to having a government that can arbitrarily dispose of people's rights.
That was exactly my thought. Who gets to decide which pieces get ignored? A pundit who has his favorite pieces?
I agree the laws of the land, and, by extension, the Constitution, need to be altered to reflect the times; but an ad hoc method is not the right way. An ad hoc method simply means the people with the most power get to decide, something the Founders were decidedly trying to prevent.
One of the greatest accomplishments of the Founders was the recognized the need to change with the times and laid a foundation for it. As a country, we just seem to be too (lazy?) to follow the guidance.
> As a country, we just seem to be too (lazy?) to [amend the Constitution]
The problem with passing Constitutional amendments right now is the highly partisan political climate of the last decade or two: The parties divide nearly fifty-fifty and often define themselves by their opposition to the other party. Many of the most commonly raised ideas for amendments -- getting rid of the death penalty, legalizing gay marriage, abolishing the Second Amendment -- are deeply divisive issues among the people. These factors make it very difficult for anyone to get the big majority necessary for a Constitutional amendment.
Changes in US party politics will ultimately be forced by demographics. Minorities are increasing due to higher birth rates and immigration. The baby boomers will eventually start dying. Society as a whole is becoming more secular, especially among the young.
Either the Republican party will redefine itself in order to steal some categories of currently Democratic voters, a new party will rise to prominence, or (IMHO the most likely scenario) when the Republican party ceases to be a threat to Democrats' political agendas in ~10-40 years, the Democrats will themselves collapse.
The fault lines are already there: Liberals like Obama favor massive spending on ambitious social programs. Civil libertarians -- there seem to be quite a few here on HN -- want a reduced government presence and an expansion of individual rights. Centrists like Bill Clinton aren't opposed to overseas military intervention and support balanced budgets and the reform of social programs. It's easy to see this coalition disintegrating without the pressure presented by their current common political foe, the Republican party.
> The fault lines are already there: Liberals like Obama favor massive spending on ambitious social programs. Civil libertarians -- there seem to be quite a few here on HN -- want a reduced government presence and an expansion of individual rights. Centrists like Bill Clinton aren't opposed to overseas military intervention and support balanced budgets and the reform of social programs.
The fact that you refer to "massive spending on ambitious social programs" as a "liberal" idea, and distinguish "liberal" from "civil libertarian", already kind of belies the issue. In most countries, there's a distinction between liberals and leftists. A liberal is someone who favores reduced government presence, strong individual rights, and markets--kind of like US libertarians, except far less extreme. An example would be the UK Liberal Democrats. Leftists are the ones who favor workers and social programs, and have strong ties to labor unions, like the UK Labour party. Conservatives are like conservatives here except, again, less extreme. Conservative parties in countries like the UK or Canada still tend to favor universal healthcare, for instance.
As we've seen in the UK, liberals can and do coalition with either side. You tend to see similar things in the US, though--whatever party holds the Presidency usually wants to expand executive powers at the expense of civil liberties, which leads the other party to reflexively take liberal stances. For instance, the Clinton administration's efforts against cryptography and gun ownership led to Republican opposition on both fronts, while the Bush administration's advancement of warrantless wiretapping and indefinite detention led to strong Democratic opposition that disappeared as soon as a Democratic president was pushing for the same things.
Actually, the problem is that there is no coherent liberal agenda in America. Philosophically, gay marriage, gun rights, opposition to warrantless wiretapping, and marijuana legalization are all liberal viewpoints, but out of the current political parties, each position is respectively supported by Democrats, Republicans, no one, and a minority on both sides.
Change is disruptive. Disruption during instability (such as the economic condition of our country, political instability due to polarized nearly 50/50 political split of the people) is dangerous. But more importantly, estabilished lobbying powers inherently tend to equalize change unless one or more become significantly stronger and change the balance of power. And if those lobbying powers are not in favor of the change, it won't happen. Finally, change can lead to a great deal of uncertainty. Uncertainty is risk, and risk is typically bad when it comes to politics.
Amendments to the constitution could happen of course, but this would be an unlikely time for them.
It is more likely that the interpretation of the constitution would change. And that has changed very much over time.
Yes. I think the author is exactly wrong. The problem is not that we are too bound to the Constitution; it's that we allow violations of it at all. Constitutional violations like warrentless wiretapping should get an entire administration ousted overnight.
If the Constitution is wrong in some areas, amend it. If you can't get enough people to agree that it's wrong, well, it sucks to be on the losing side of a vote, but democracy doesn't mean everyone always gets their way.
It's supposed to be hard to change the fundamental laws of a land, because we want to be able to rely on them. Gridlock is another word for stability.
>> Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.
We should, yes. We should follow them whether they were in the Constitution or not. We also should refrain from stealing and murder. But I, for one, want consequences for those who don't.
Oh, that's easy. Classic case described by Mises and probably before too. He imagines he's going to choose which parts are ignored and which aren't, or if he's more modest, he imagines somebody else which would be, by weird coincidence, agreeing with him on all counts except for some minor unimportant details.
The good test for such concept is to ask such person to identify most unpleasant, unattractive, disgusting political figure, that holds views absolutely abhorrent to him and see if he still supports this case if that person if put in charge of choosing which part of the Constitution to ignore and which freedoms are unnecessary to have. Somehow they never think that would happen.
That's why I am for limited government - I'd probably love to have government that does exactly what I want. But I know that would never happen, so I'd rather have one that does not give bad people in power ability to do too much of bad things. And anybody having any knowledge of history knows bad people in power happen way more often than one would like.
It's not like the president violating the Constitution is a new thing. Didn't Lincoln limit freedom of speech and disregard habeaus corpus for Confederate sympathizers?
The more laws are bent and disregarded, the less any law (not just those laws) will be followed. Ask any parent.
I think that we may be better off if those that are willing to give up all power to the government to disregard the constitution would just run their own country, and leave the rest of us out of it. For someone that writes for an organization that makes its living off of the 1st amendment to advocate throwing out that which provides it that 1st amendment is moronic at best, and suicidal and murderous of a free press and a free people at worst.
Exactly. How many times has the supreme court struck down laws because they violated the first amendment? I'm not OK with giving congress unlimited authority to do whatever they please.
Edit:
A quick search shows a total of 1,315 laws have been declared unconstitutional by the supreme court. And countless laws weren't passed in the first place because legislators were aware that they would eventually be overturned.
That sounds like a lot. Shouldn't US have the Supreme Court verify laws for constitutionality as soon as they pass Congress, like it happens in other countries?
First someone who is affected by the law has to challenge it, then the challenge has to make its way through the appeals process until it reaches the level below the supreme court, and then finally the supreme court must decide to take up the case. It's a fairly involved process that only ever gets applied to a small fraction of laws. But the filtering process tends to select laws of questionable constitutionality, so it's fairly inevitable for something like the ACA to end up there. Though it helps to have a powerful interested party pushing a case through the process.
Many constitutions allow suspension of many rights in times of war or things like that. You just have to be careful though, cause that's how Germany became a totalitarian dictatorship.
If you note, his list of quotations of people saying "Let's just ignore the constitution" basically ends with the abolitionists. Shortly after them, the bloodiest war in American History (form our point of view) was fought. The Constitution came out of that war as a document that all states were basically locked into. You weren't allowed to quit.
If you were to dissolve the Constitution, and brought 50 states back to he negotiating table (especially in this time of hyperpartisanship), I doubt you'd get 50 states walking back out together.
For all it's flaws and bits of archaic pedantry, it's the one thing that you can get the majority of Americans to swear their allegiance to.
Also, I rather like the fact that today, people feel that you can't ignore the Supreme Court. This wasn't really the case 150 years ago.
I'd put the date a little later: 1913. The ratification of the 17th Amendment got rid of the states' representatives in the federal government. Most citizens don't care about the particular divisions of power between levels of government, and now that state legislatures can't effectively defend their purview, it shrinks by the day.
This is also why the Senate can't start tax authorizing bills... The states weren't suppose to be able to raise taxes on the people for feudal matters, only the people should be able to do so through their representation in the federal government, the House of Representatives. I think we could fix a lot of issues by repealing the 17th amendment.
Pretty weak article. He suggests ignoring the Constitution because only the House is supposed to present revenue measures. I was hoping he would detail every way the Constitution has been eroded and sidestepped and conclude that it's an ineffective document in need of updating: more teeth and more specifics.
The proposal is to ignore the Constitution and give congress unlimited power to congress and the executive branch to enact whatever laws/executive orders they like--with no oversight?
Or does the supreme court still have the power to overturn laws that we "respect?" Who decides what rules we "respect"--do we make up a list every ten years?
Additionally, this suggestion is completely infeasible. The Constitution may have been eroded slowly over the years, but if the Government declared tomorrow that we were no longer bound by our founding document, there would most likely be a rebellion or maybe even a military coup.
Every member of the United States military is sworn to "...support and defend the Constitution of the United States against all enemies, foreign and domestic...", and most of them take that oath very seriously.
Yeah, the fact that money bills have to originate in the House has nothing to do with an 800-year-old fundamental principle of the people having a vote in their own taxation. It's clearly an inconvenient constitutional loophole that Madison put in to let John Boehner obstruct Obama and the Democrats.
The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish Government presupposes the duty of every individual to obey the established Government.[1]
Out of interest, what is the comparison between a constitution and a religious book, like the bible or Koran?
Im not saying there are no differences, but I see a lot of parallels, and I see lot of the same down sides or mistakes. US folk do seem to worship and argue the meaning of the constitution like people do with religious texts.
If the parallel works, the main issue I see is that religious groups and US citizens do seem to waste time and become paralysed by arguing meaning and intent, while action gets neglected. Again, from an out side POV, it look like the US constitution makes the US its self politically seize up, while US international policy seems wild and uncontrolled. My out side assumption is that the US constitution says a lot about internal politics, but nothing controls or governs its foreign policy. And, in that respect, may I suggest the adoption of Star Trek's Prime Directive as a start?
Lastly, does any one see a time when the US gets divided over how the constitution is interpreted? Will we see fundamental constitutionalists? Will we see something like a Catholic / Anglican split? Or different groups following different interpretations like with Islam? It seems that the right in the US is fairly constitutionally fundamental, could the extremes of them, with all their guns, become insurgents or terrorists to try to enforce their notion of the constitution? It seems to me, that the constitution actually allows for that. I mean, they do seem to see the centre right, or what the US might call the democrat left, as an internal threat to the US and its constitution. OK, perhaps laughable now, but what if this nasty vicious election process continues to get worse and worse? What if people begin to believe the lies? At what point might that tip over in to a violence the authorities can and wont suppress? Could US troops really fire on US citizens fighting for the constitution?
Lets just scrap the government altogether. We're all adults, lets act like it. We don't need to elect a bunch of people to tell us what to do and what not to do.
"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." - Plato
I think Founding Fathers acted like adults when they established the government. They actually wrote quite a lot explaining why they did it, and a lot of it makes sense if you read it. Government is a service, and it makes sense to make it specialized just as any other service - because specialization makes it efficient, that's why you don't make your own car, you buy it. Government, however, is a very dangerous thing, so there are some ways to manage it so it does not kill the people or make their lives miserable (think about a nuclear reactor - very useful thing if you do it right, very very dangerous thing if you let it go wrong). Unfortunately, American citizens seem to be letting their government to grow way beyond the planned sizes and do what it was never meant to do and never is going to do well. They are getting their ample share of misery for that, unfortunately.
As for the Plato's saying, there's also another one - "Amicus Plato, sed magis amica veritas". I do not, of course, claim to be Plato's friend, but I hope truth still has the same appeal for me as it did for the great Greeks.
Unfortunately, that's how all the governments work, so far nobody designed a working model of concurrent voluntary jurisdictions. It would be nice to try but for that one would need to start from scratch, which is not going to happen in the US.
Obviously it takes an individual to carry out the violence, but governments have been responsible for organizing mass violence.
The millions of deaths from war would have been extremely unlikely to happen unless orchestrated by a government.
The exception would be the mexican drug war, but even that could be argued to be caused by government enforced prohibition. Even so, the deaths caused by the cartels are low compared to deaths from wars and genocides that governments have carried out.
Sounds interesting, but I have doubts about utilitarian arguments too. Why not check out Rothbard's "For a New Liberty"? It's in audio form for free here:
Chapter 12. The Public Sector, III: Police, Law, and the Courts is particularly impressive.
EDIT: Here is Rothbard's amusing argument against utilitarianism:
"Let us consider a stark example: Suppose a society which
fervently considers all redheads to be agents of the Devil and therefore to be executed whenever found. Let us further
assume that only a small number of redheads exist in any generation—so few as to be statistically insignificant. The utilitarian-libertarian might well reason: “While the murder of isolated redheads is deplorable, the executions are small in number; the vast majority of the public, as non-redheads,achieves enormous psychic satisfaction from the public execution of redheads. The social cost is negligible, the social, psychic benefit to the rest of society is great; therefore, it is right and proper for society to execute the redheads.” The natural-rights libertarian, overwhelmingly concerned as he is for the
justice of the act, will react in horror and staunchly and
unequivocally oppose the executions as totally unjustified
murder and aggression upon non-aggressive persons. The consequence of stopping the murders — depriving the bulk of society of great psychic pleasure — would not influence such a libertarian, the “absolutist” libertarian, in the slightest. Dedicated to justice and to logical consistency, the natural-rights libertarian cheerfully admits to being “doctrinaire,” to being, in short, an unabashed follower of his own doctrines."
I have to check it out. However, if the book really does argue from a utilitarian POV, it fails right there. Utilitarianism by itself is hardly the basis of any human's thought. Otherwise we'd all be vegans thanks to Peter Singer's "Animal Liberation."
Still, I'm not going to take Wikipedia's take on it. Thank you for the first book recommendation of the new year.
If you look at government as a service, imagine if it weren't compulsory, and if competition were allowed.
This would solve many problems that are caused when government is a monopoly. If you can opt out, or conveniently choose another "service provider", it makes that service more accountable for its actions.
Even services like phone/internet providers would improve as a result, because those government approved monopolies would no longer be enforced, opening up competition in those sectors as well.
Summary: "I hate the US's form of government, therefore let's replace the rule of law with the rule of dictate." Thank you nytimes for making your multi-decade anti-democratic, anti-legal, anti-American agenda more explicit than usual.
The UK doesn't have a codified constitution - parts of it aren't written down anywhere at all. Any act of parliament can override any existing act or law, parliament can pass any new act it pleases.
As anywhere else, we're not perfect but it's not a complete disaster.
Our core system of government - which has done pretty well for 200+ years despite all the undermining Congress & the Executive branch have done - is still better than the rest. It has done so well because it's a system built on principles that are eternal, it was specifically not built for any given time, but rather for all time. The only problem we have, is we need to return to a constitutional system of government, not be an extraconstitutional system, where the government intentionally ignores its limitations when it feels like it. We need to be a Republic again, not a mob rule Democracy that eats itself alive as is occurring right now.
The biggest problem America has is a vastly overreaching government, and it's overreaching in every regard possible, from privacy to fiscal to military to general freedom.
The only people advocating for an end or change to the Constitution, are those interested in various forms of authoritarian rule. Their goal is always, one way or another, to give more power to some central authority, and to limit freedom of the individual.
Better than the rest? Sorry, but parliamentary systems with the executive sitting in the parliament, answerable to the members, seem better than the American system. In Australia, we use the nickname "Washminster" to describe our delightful blend of Westminster and Washington approaches.
Question Time might be messy, unpleasant and adversarial, but it's a much better way to hold the executive / legislative branches to account than the duelling, highly staged press conferences that dominate American political conversation.
While I understand your statement and its origins in 19th century thought, you seem to misunderstand the foundations of our government. This is completely normal, as almost no-one really get what the founders thought or why they made the decisions they did.
I'm one of those people that obsessively studied that period of history, however. Please, before you comment about the overreaching nature of our government, read Hume.
Your comment would be much better if you actually outlined what is the correct approach here and summarized what Hume said that you think is important in this particular case. Somehow just saying "I know much more than you, so shut up" and "Go read the Internet^W^WHume" is not very convincing by itself. I personally am willing to believe you spent a lot of time studying the relevant history and possess major insights which other people do not. But why don't you share some of them instead of just claiming you have them?
I wouldn't really vouch for "the rest", but Constitution so far held the government from infringing on many rights of the citizens - such as free speech, self-defense, etc. - that are commonly infringed in many European nations, for example. It does not mean it was perfect - many rights were still massively infringed and usurped, Constitution is ultimately nothing but an idea and people should still stand behind it for it to be effective - but it fared better than without it.
Not entirely sure, but I think he's getting that from this famous Winston Churchill quote:
> No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of Government except all those other forms that have been tried from time to time;
Giving up on the Constitution right now would guarantee that the rethinking of the 1st, 4th and 5th amendment would be a lot worse than they currently are. I wouldn't risk that.
We already have. That's why we're in this mess. The only time the constitution is invoked by politicians is to stall the other side because they know that the basic tenets are gone. The Bill of Rights? One or two amendments might still apply in reality. MIGHT!
If you don't like the constitution, get your officials to amend it. That was built into the constitution as the exact fix for this kind of problem, and it's the way to "modernize" the constitution.
Nor should we have a debate about, for instance, how long the president's term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor."
So the author is advocating for an arbitrary system in which we decide in ad-hoc ways which parts of the Constitution we want to follow. Unfortunately, this already seems to be happening, as our government sees fit to disregard various provisions of the Bill of Rights, e.g., warrantless wiretapping, or the President's assertion that he can dispatch drones to kill even US citizens without due process.[1] It seems that the government proves to us every day that it needs the Constitution to keep it on a short leash.
Since the Constitution contains a process by which it can be amended, why don't we just follow that? Over the years, amendments have given us some very fundamental changes: the abolition of slavery, the right of women to vote, presidential term limits, etc. Granted, it's a slow process that the author may be impatient with, but it's probably preferable to having a government that can arbitrarily dispose of people's rights.
[1] https://ssl1.washingtonpost.com/opinions/obamas-kill-list-is...